When the initial draft of the future law on the advocate monopoly appeared on the website of the Ministry of Justice in 2017, it immediately caused a huge storm of emotions in the legal community. In fact, this document is still only in its initial stage, since several more years have been set aside for its revision, therefore, it will not be issued in the near future. According to the Ministry of Justice, the lawyer's monopoly will be established only in 2023, when the bill will be completed in full, taking into account all the proposals that will be submitted to it as a result of ongoing discussions. This article describes why there was a need for this document, as well as its main provisions.
Need for a bill
The introduction of the advocate monopoly in the Russian Federation began to be discussed at the highest level several years ago. Gradually, a special concept was drawn up, which was based on one message - to transfer the provision of any legal assistance, including defense and representation in court, to the hands of exclusively lawyers and lawyer entities, which they will carry out on a reimbursable basis. As you can understand, the entire degree of power in this area will be concentrated in the hands of the institution of advocacy, and therefore the concept of monopoly has been assigned to the concept.
Such a policy of the state is determined by the fact that in the country it is necessary to significantly improve the quality of legal assistance provided by qualified specialists so that the rights and interests of ordinary citizens and legal entities can be fully protected.
Ways to solve the problem
As mentioned earlier, the need for a lawyer monopoly in the Russian Federation arose due to the low level of legal assistance provided. The state proposed to act in this situation a little radically: simply remove the whole segment in the professional legal labor market. As you know, legal services can now be provided not only by lawyers who have special knowledge and passed the exam, but also a circle of people not limited by law, which is practically not regulated in the legal sphere. By removing it, the state hopes that people will turn to lawyers with their problems, and not to other organizations.
Subject Categories
According to the draft law monopoly, now in the field of legal services (namely legal), there are two categories of entities. These include:
- Lawyers and lawyers providing assistance on the basis of the current No. 63-FZ "On Advocacy Activities", adopted in 2002.
- Other market participants who, without having the status of a lawyer, currently provide legal services. Such persons include corporate lawyers, auditors, notaries and a number of other employees.
Features of the Bar
The need for a legal monopoly is largely due to the fact that the institution of advocacy is quite clearly regulated by law. In addition to the official law, there is also a Code of Professional Activities. These documents clearly indicate on which principles the communication between the lawyer and the client should be carried out. For the second category of persons presented above, no special qualified requirements, as well as ethical ones, are generally practically defined anywhere. Therefore, it is believed that it is impossible to find out exactly what level of services can be provided by them.Their complete exclusion from the category of persons who can freely provide legal assistance should prevent the appearance of unscrupulous participants in the parties who are not able to fully and qualitatively protect the rights of citizens due to a lack of the necessary qualifications and professionalism.
Improving the quality of advocacy
However, when discussing the development of the advocate monopoly, another important issue was raised, namely, improving the existing regulation of advocacy. It has now been noticed that the country's legal framework simply cannot be synchronized with the existing needs of citizens, since the law on advocacy has been around for many years. In addition, most lawyers prefer not to go to the field of advocacy, but to that part of the market that is practically unregulated, which is generally not encouraged by the state. The bill that appeared should, in the opinion of the Ministry of Justice, encourage young professionals to strive specifically in the field of advocacy. Thus, the number of lawyers will be substantially increased and the quality of the services they provide will be increased.
Tasks Concept
The concept of the advocate monopoly is based on the following tasks:
- The gradual formation of a unified legal framework for the provision of legal services is taken out as the main, key task, and all the others more or less follow from it.
- Improving the qualifications of lawyers and, accordingly, the legal protection of clients.
- Accelerated improvement of the existing institution of advocacy.
- Preventing the provision of legal services of lawyers with low qualifications.
- Providing legal assistance that will meet all generally accepted international professional standards.
International practice
In many ways, such a monopoly of lawyers is required precisely because Russian practice is quite different from international practice, especially if developed countries are taken into account. As experience shows, in almost all countries where a developed legal system has been strengthened for quite some time, only persons with special legal status — barristers, solicitors, lawyers — can resort to protecting the rights of citizens.
To obtain such a status, certain requirements are imposed on them. Subsequently, it is necessary to constantly improve their own qualifications. The application of measures that are common in international law will allow lawyers to gain more independence, which should positively affect their professionalism. But at the same time, the state will also clearly regulate on what principles their activities are carried out.
Why advocacy?
In fact, the state now has only two ways to develop the sphere of providing quality legal assistance. The first involves the introduction of the institution of self-regulation, and the second - the advocate monopoly. Russia chose to go along the second path, since it was recognized that at the moment only the bar meets certain uniform qualification requirements for its members. Their activities are also monitored by established laws and ethics. In addition, it is clearly established in which cases lawyers may be disciplined, so that there are a number of guarantees that legal services will be provided at the proper level.
Exceptions
Indeed, the bill on advocate monopoly confirms the fact that in many legal cases, especially defense in court, only lawyers with the highest qualifications should be allowed. However, this does not say at all that now all persons will need to contact only lawyers.
The provisions of this concept will not apply in any way to those lawyers who work for the legal departments of organizations and enterprises in those cases when they carry out their activities on the basis of an employment contract. In addition, the question is open of granting the right of representation to persons who are close relatives to the person whose interests they protect, as well as to lawyers who are legal representatives of the person who has applied to them.
In addition, employees of the state system of free legal aid or those non-profit organizations that work for free will retain the right to provide legal assistance.
Phased implementation
Since this bill is quite ambitious, it was decided to implement it in stages, so as not to provoke a collapse in the provision of legal services. Conventionally, the process is divided into the following stages:
- The first will be implemented in 2018. During this time, new normative legal acts should be created that would control the form of lawyer formations, detail the principle of taxation in this area. In addition, it is planned to resolve the issue of the activities of lawyers from other countries operating in Russia. Steps will also be taken to increase the status of a lawyer and the effectiveness of professional activities.
- The second stage is planned for implementation in 2019. Acts will be developed aimed at simplifying the transition of lawyers to the status of lawyers. Of course, such persons should still comply with all the requirements prescribed by law. In addition, several more criteria will be introduced. A much simplified transition will concern contributions and the number of years of service with applicants.
- The third stage will take place in 2020–2023, when lawyers will be directly transferred to the bar. A simplified transition system will also continue. During this time, it is assumed that all persons interested in obtaining the status of a lawyer will gradually move from the second group to the bar and significantly replenish its number.
Information in conclusion
The concept of advocate monopoly offers a fundamentally new development of advocacy in Russia. The sphere will be closer to the international model, which requires high qualifications of persons who protect the rights and interests of clients. This document is still not completed, although it is gradually being put into effect. But the final result can be seen only after 2023, when the law enters into force.